Ford Motor Co. v. Tidwell

ON MOTION FOR REHEARING

The Appellee has filed a motion for rehearing and we feel that three points made in the motion deserve further discussion. In the first place, the Appellee complains that the Appellant, in its motion for new trial, made no complaint that there was insufficient evidence to support the jury finding on Special Issue No. B that the vehicle was unfit, nor did it make any complaint that the finding was contrary to the overwhelming weight and preponderance of the evidence. We have examined the motion for new trial. The Appellee is correct in his present assertion, and the Appellant failed to preserve that evidentiary point for the purposes of this appeal. Rules 374 and 418, Tex.R.Civ.P.; Samford v. Duff, 483 S.W.2d 517 at 526 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

The Appellee also points out that the evidentiary point, made in the Appellant’s brief regarding the finding that the valuation of the automobile at the time of sale was $3,800.00, was in terms that the jury finding was “contrary to the overwhelming weight and preponderance of the evidence,” while the assignment of error in the motion for new trial which complained of that finding was couched in terms that there was “insufficient evidence to support that finding.”

Lastly, the Appellee now complains that the two points which we did sustain were in terms of “contrary to the overwhelming weight and preponderance of the evidence,” and we treated and discussed those points as being “insufficient evidence points.”

We overrule the Appellee’s motion for rehearing. As to the first complaint above discussed, we note that this is the first time that the defect has been pointed out. A similar late complaint was made in Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). There, Justice Osborn pointed out that that appellee chose to do battle on the merits of the issue as it was presented in the appellant’s brief, that he lost, and that on his motion for rehearing he claimed for the first time that there should have been no battle because the issue was not properly raised in the trial Court. In holding that the appellee was not entitled to a second bite of the apple, the rule was made that the objection concerning a proper assignment in the trial Court came too late, was waived, and the motion for rehearing was overruled. Not only does the complaint come too late, but Rule 374, Tex.R.Civ.P., has been repealed effective January 1,1978, and the factual insufficiency complaint in a jury tried case may now be presented for the first time on appeal. See Rule 324, Tex.R.Civ.P. We merely note these *837changes without determining their specific application to this case, which was submitted before the changes became effective.

As to the other matters raised by the Appellee in his motion for rehearing and pointed out above, we note that the assignment of error and the Appellant’s point should have been stated in terms of “insufficient evidence,” as the Appellant was complaining of a finding on a special issue on which it did not have the burden of proof. That the Appellant used the term “contrary to the overwhelming weight and preponderance of the evidence” matters not. The test is the same. This Court is required to examine the whole record, not only to determine whether there is some evidence to support the jury’s finding to the special issue, but also to determine whether, considering all of the evidence, the finding is not manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 at 662 (1951). Since “insufficient” and “great weight” points invoke the same test of the evidence, a misuse of one for the other should not preclude a determination of the merits of a point of error. See O’Connor, “Appealing Jury Findings,” 12 Hous.L.Rev. 65 at 77, 82 (1974). Since we have been directed to adopt a liberal rule with reference to the construction of points contained in Appellant’s brief, and to pass on the merits of a point of error in the light of the statement and arguments thereunder, we properly treated the points which we discussed as “insufficient evidence” points and sustained them. See discussion in O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 at 114 (Tex.1976).

For the reasons stated, we overrule the points in the Appellee’s motion for rehearing which we have discussed. We have also considered the other points of error in the Appellee’s motion for rehearing, and all of the points are overruled and the motion for rehearing is denied.